Mills v. Paul

• Decision Date: 13 September 1893
• Docket Number: (No. 292.)
• Citation: 23 S.W. 395
• Parties: MILLS et al. v. PAUL.
• Court: Texas Court of Appeals

23 S.W. 395

MILLS et al. v. PAUL.

(No. 292.)

Court of Civil Appeals of Texas.

September 13, 1893.

Error from district court, El Paso county; T. A. Falvey, Judge.

Action by George Paul against Anson Mills and others for money judgment and foreclosure. Judgment for plaintiff. Defendants bring error. Dismissed.

M. W. Stanton and W. W. Turney, for plaintiffs in error. Millard Patterson, for defendant in error.

JAMES, C. J.

The defendant in error moves — First, to strike out the statement of facts; second, to dismiss the writ of error. The causes for striking out the statement of facts are not deemed substantial. One ground for dismissing the writ of error is that the writ of error cites defendant to appear thus: "Before the court of civil appeals in the city of Austin, Texas, at the next term thereof to be holden in the city of Austin, Texas, within 60 days from the date of the service of this citation." As the citation distinctly designated the time within which appearance was to be made, and the court, the defendant in error could not have been misled by the addition of the words, "at the next term thereof to be holden in the city of Austin, Texas." This ground for dismissal is not sustained.

The only grounds advanced why the writ of error should be dismissed, that seem to have any merit, are that the bond is not payable to all adverse parties to the suit, and that the judgment from which the writ of error is taken is not a final judgment of the district court. The record discloses that nine separate suits were instituted by different plaintiffs against the plaintiffs in error, each to obtain a money judgment, with foreclosure of lien on real property; that prior to the trial the district court entered an order consolidating the nine causes under the docket number of one of them; and there is nothing to show that the order of consolidation was ever set aside or modified. On February 26, 1892, a trial was had, and four of the nine cases were disposed of by separate verdicts and judgments, — one of them being the case brought here by this writ of error; and it sufficiently appears from the motion for new trial, and the other overruling same, and the statement of facts, that the four causes were tried together, and that the order of consolidation continued in force. The record contains nothing to show that the other five cases have been disposed of. The bond for writ of error is made payable to defendant in error George Paul, the other parties to the consolidated suit not being named therein as obligees. There are decisions which would indicate that the other adverse parties should have been included in the bond, but we do not make any ruling...